Opinion
DOCKET NO. 99-CV-0871E(Sc)
April 11, 2001
ATTORNEYS FOR THE PLAINTIFF: Pro Se, Batavia, N.Y. 14020.
ATTORNEYS FOR THE DEFENDANT: David W. Ogden, Esq., Asst. Attorney General, Civil Division and Robbin K. Blaya, Esq., Office of Immigration Litigation, Civil Division, U.S. Dept. of Justice, Washington, D.C. 20044, James W. Grable, Esq., Special Asst. United States Attorney, Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Mr. Castro filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 November 2, 1999. Respondent filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for his failure to state a claim upon which relief can be granted December 21, 1999 which the undersigned referred to Magistrate Judge Hugh B. Scott for consideration and a Report and Recommendation ("RR") pursuant to 28 U.S.C. § 636 (b)(1)(B). Judge Scott filed such September 19, 2000 recommending that the motion to dismiss be denied and that Respondent be directed to submit a supplemental response to the petition based on the decision of the Second Circuit Court of Appeals in St. Cyr v. Immigration and Naturalization Service, 229 F.3d 406 (2000), cert. granted, ___ U.S. ___, 121 S.Ct. 848 (2001). Respondent filed objections to the RR September 29, 2000 and such were submitted on the papers November 3, 2000.
Petitioner is a Cuban who had entered the United States in 1980 at the age of sixteen. He sought asylum and was paroled into the United States from the Immigration and Naturalization Service ("INS") office in Fort Chafee, Ark. December 15, 1980. Respondent's Response to Petitioner's Petition for a Writ of Habeas Corpus ("Response") Exh. B (Request for Asylum dated December 15, 1980). In March 1991 Petitioner was convicted of the criminal sale of cocaine in the third degree and of attempted robbery in the first degree and was sentenced therefor to concurrent terms of imprisonment of one and one-half to four and one-half years on each count — and actually served one and one-half years. In January of 1995 he was convicted of endangering the welfare of a child and sentenced to three years of probation. RR at 1-2. Based upon the above convictions the INS terminated his parole and ordered that he be detained pending deportation February 23, 1999. Response, Exh. F; Mem. in Supp. of Pet. for Habeas Corpus, Exh. C. He was found to be removable from the United States by an Immigration Judge May 7, 1999. Response, Exh. H. The Board of Immigration Appeals dismissed his appeal for lack of jurisdiction September 30, 1999. Id. Exh. J. Petitioner thereafter filed the instant petition seeking, inter alia, vacatur of the order of deportation and release from the INS detention facility.
"During the proceedings, the Immigration Judge determined that the respondent was removable as charged and ineligible for relief. When asked by the Immigration Judge if he accepted this decision, he replied (Tr. at 71): "Yes.' At that point, the respondent waived his right to appeal, and the Immigration Judge's decision became administratively final." Response, Exh. J (September 30, 1999 Decision of Board of Immigration Appeals).
As noted by Judge Scott, the Immigration Judge may have retroactively applied amendments made to the Immigration and Nationalization Act ("INA") by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. Law 104-132, 110 Stat. 1214 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. Law 104-208, 110 Stat. 3009 ("IIRIRA"). These amendments removed discretionary relief from deportation for aliens convicted of certain crimes. In St. Cyr, which was decided during the pendency of this petition, the Second Circuit Court of Appeals held that these amendments were not retroactive.
"Prior to 1996, INA § 212(c) gave power to the Attorney General to permit a worthy alien to stay in this country in order to avoid extraordinary hardship to the alien's family in the United States. In a case where a convicted alien demonstrated that he or she had a lawful unrelinquished domicile in the United States for at least seven years and that his or her conviction was not for an "aggravated felony," for which he or she had served a term of imprisonment of five years or longer, the Attorney General could, in her discretion, waive deportation. Under the law in effect before 1996, if the Attorney General denied relief, the alien could challenge that denial by filing a petition for review in the court of appeals." St. Cyr, at 410-411.
Internal citations omitted.
It appears that Petitioner would have been, prior to the enactment of the AEDPA and the IIRIRA, eligible for discretionary relief from deportation; however the enactment of the above statutes removed such discretion due to convictions.
At the time he was taken into custody by the INS, Petitioner had a part-time job, was attending Erie Community College full time and had completed a substance abuse program. He was married to a United States citizen and has four children all of whom are United States citizens. He had been in the United States for over seven years and he had not served in excess of five years in prison for an aggravated felony.
Respondent filed nineteen pages of objections to Judge Scott's three-page RR, of which only two pages relate to the issue raised in the RR — i.e., supplemental briefing in response to St. Cyr. The only objection raised by Respondent which is relevant to the issue raised in the RR is that St. Cyr is inapplicable to the present case because Petitioner was never a legal resident of the United States and therefore was never eligible for discretionary relief from deportation. Objections at 7-9. However this Court referred the motion to dismiss to Judge Scott and he has not yet had the opportunity to address this issue. Furthermore, this Court notes that there are facts in the record that contradict Respondent's claim that Petitioner never was a legal resident of the United States. He had sought asylum and been paroled into the United States by the INS December 15, 1980. Mem. in Supp. of Mot. to Dismiss Exh. B (Request for Asylum dated December 15, 1980). It also appears that Petitioner has been issued a Social Security number. Id. Exh. E (Application for Asylum dated March 31, 1999). Petitioner also states that he repeatedly attempted to become a lawful permanent resident beginning in 1982 and that the INS had always been willing to grant him such status. However, Petitioner states that he refused to accept the offered green card because it had erroneously listed his date of birth which the INS refused to correct and he was afraid that accepting a green card with the wrong birthdate would cause him problems in obtaining citizenship in the future. Mem. in Supp. of Pet. for Habeas Corpus Exh. G (Castro December 27, 1999 Aff.). This Court notes that both his passport and birth certificate list his date of birth as March 8, 1963 — Id. Exh. A — and that the INS entered it as March 8, 1962 on his Form I-589 Request for Asylum dated December 15, 1980. Response, Exh. B. In light of the above this Court agrees with Judge Scott that further briefing in light of St. Cyr would be helpful due to the possibility that the Immigration Judge may have erroneously applied the law. The remainder of Respondent's "objections" to the RR do not address the RR and accordingly will not be considered by this Court; however they may be raised before Judge Scott, to whom the motion to dismiss remains referred for his further consideration.
Box 5 on the Request for Asylum form — Exh. B to the Response — is labeled "Date of Birth (Mo./Day/Year)"; the entry therein is "090362" which by definition should equate to September 3, 1962. If misconstrued as Day/Mo/Year, the date is March 9, 1962.
Accordingly it is hereby ORDERED that the objections are overruled, that the instant RR is adopted in its entirety, that the motion to dismiss is denied without prejudice and that respondent shall supplement its motion to dismiss within thirty days of the filing of this Memorandum and Order.